Before taking part in industrial action, it's essential you make sure that the industrial action is protected. You may personally face consequences, including legal action and fines if you participate in industrial action that's not protected.
An employer must not threaten to dismiss, injure a person’s employment or discriminate against an employee who takes part in protected industrial action.
If this happens, the employee can make a complaint to the Fair Work Ombudsman and penalties may apply to the employer. A Fair Work Inspector will investigate the complaint and take measures against the action taken by the employer.
You don't have to be involved in industrial action, even if a protected action ballot has been taken approving industrial action.
It's unlawful for any person to take adverse action against you because you don't take part in industrial action and penalties may apply.
It is illegal to coerce anyone to take part in industrial action, and penalties may apply. If you have been pressured or coerced to take part in industrial action, please call us and we can help you.
Once a protected action ballot has authorised taking industrial action, all employees who were included in the group or groups of employees included in the protected action ballot order issued by Fair Work Australia are able to take protected industrial action.
This applies even if an employee voted against it.
If you are sick or absent for a legitimate reason and do not come to work on a day that unprotected or unlawful industrial action is taken by other employees, you should ensure that you provide all appropriate medical or other relevant evidence as required under the National Employment Standards, your modern award and/or your agreement.
There is more information about medical notice and evidence in the personal leave section of this website.
An employer can take protected industrial action (known as 'employer response action') in response to the industrial action of employees.
Employers may want to seek professional advice before starting employer response action.
If the industrial action was protected, contraventions of these types of Fair Work Australia Orders are not subject to fines and other civil remedy provisions and ordinarily are not investigated and enforced by the Fair Work Ombudsman. However, such contraventions may leave parties exposed to civil action, such as being sued, by other affected parties.
If the action was unprotected action, then contravention of a Fair Work Australia Stop Order is subject to fines and other civil remedy provisions. The Fair Work Ombudsman can litigate against employees, employers, employee organisations and their officers who have organised or engaged in the unlawful action for financial penalties. Additionally, parties who have suffered a loss because of the unlawful action can litigate for damages associated with the unlawful action.
The Fair Work Ombudsman has an industrial action policy that details how and why we investigate industrial action.
When we investigate, we may ask to speak to any employees who were involved in the action. We may send a letter to employees asking them to attend a voluntary interview.
We may also require that certain documents or records are produced by employers, employees or industrial organisations.
Please note that while your participation in any discussions with us is voluntary, any information you do provide may be used to progress an investigation and may later be given in evidence.
After we have investigated the industrial action and the involvement of anyone in it, we may either:
- decide there is insufficient evidence to support any enforcement action
- decide it may not be in the public interest to commence legal proceedings and instead issue a ‘Letter of caution.’ These letters are recorded and taken into consideration when deciding whether its in the public interest to commence legal proceedings in the future
- decide, if it is in the public interest, that a written enforceable undertaking (in the form of a deed) may be accepted by the FWO in lieu of litigation
- decide in particular circumstances to apply to a court for an injunction or other order in relation to contraventions
- decide to file proceedings in a court and seek to have penalties imposed on the people or organisations involved in the industrial action.